In 1709 the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Jeremy at jjip@btinternet.com

1709 Blog: for all the copyright community

Tuesday, 30 March 2010

You thought Europe consisted of 27 member states. It looks like we may soon be joined by another... Canada and the EU have been negotiating the Comprehensive Economic and Trade Agreement (CETA) to reduce barriers to trade. Michael Geist has obtained a (leaked) proposal and it looks like Canadian IP law may be on the way to becoming more European (rather than European law becoming more Canadian). Harmonization knows no bounds. Well, I guess there are more of us than of them. Why not go the whole hog and bring US law into line too?

Friday, 26 March 2010

The March 2010 issue of Informa Law's Copyright World has now been published. It contains, among other things, a review by Navin Katyal (from public sector body Infrastructure Ontario) of the need to reform the Crown copyright provisions that still, perhaps somewhat anachronistically, linger under Canadian law. He argues that, while Crown copyright should not be undermined simply because Government has a regulatory role, consultation should lead to clearer guidance as to what should remain protected: prime source materials, such as legislative acts and government regulations, should be left to the public domain.

On the subject of crowns (as in "Jack fell down and broke his crown ...") here's also a summary by Simon Clark of Berwin Leighton Paisner which explains last December's Court of Appeal decision in the 'Star Wars helmet' case,Lucasfilm Ltd v Andrew Ainsworth and another.

Thursday, 25 March 2010

Things have been a bit quiet in the Google vs Viacom legal spat, the $1 billion lawsuit which accuses Google of profiting from thousands of unauthorized copyrighted clips owned by Viasom that once appeared on YouTube. But the case documents have now been unsealed and the gloves are definitely off, with Google accusing Viacom’s lawyers of editing emails and Viacom claiming that Google and YouTube had developed "serial amnesia" during depositions and also for failing "to preserve and produce" key documents.

It seems that in Viacom's summary judgment motion filed last week, the company quoted Steve Chen, one of YouTube's co-founders, in an e-mail saying "Concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil." Now you could see why Viacom, as a content owner, might not like this. But it now seems what the email actually said was this: "If I were running the show, I'd say, we concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil, i.e., scraping MySpace." Now that might be a blow for MySpace owners News Corp, but it hardly has the same meaning as the edited version presented by Viacom. On the other hand ...... Viacom claims that it has not received emails that should have been disclosed saying that Google hasn’t acted in good faith by failing to turn over documents. Viacom's lawyers said that Google handed over only 19 records from June 2006, the month that Google began evaluating a YouTube acquisition. When Google boss Eric Schmidt was asked why a big acquisition like YouTube didn't generate more paperwork he answered that "(It) has been my practice for 30 years to not retain my e-mails unless asked specifically” adding "It was my practice to delete or otherwise cause the e-mails that I had read to go away as quickly as possible." YouTube boss and founder Chad Hurley told Viacom lawyers that he "lost" his e-mails for the period because of a computer crash. Viacom, however, retrieved many of Hurley's e-mails from the personal computer of Jawed Karim, another one of YouTube's three co-founders. When Hurley was presented with copies of those e-mails Viacom claims that the YouTube CEO "developed serial amnesia."

Music Matters “a collective of people across the music industry, including artists, retailers, songwriters, labels and managers” has formed “to remind listeners of the significance and value of music” and has launched a new trustmark to “act as a guide for music fans and help differentiate legal music services from illegal ones, Organisers have said “the Music Matters Certification Scheme is working with legal digital music services to ensure they carry the Music Matters trustmark. This will help audiences differentiate legal music sites from illegal sites”. Supporting sites include Vodafone, BT, MTV, we7, Spotify, ERA, Orange, Amazon, TuneTribe, Play.com, Sky Songs, MySpace and Napster. I do wonder if anyone checked the name out first – there are numerous ‘Music Matters’ that come up in a quick google search – The Hong Kong based Asia/Pacific music conference of the same name, the Chicago based classic concerts gig guide, a campaign aiming to raise awareness and address the need for additional funds for less-privileged schools and college programmes in the USA, a teaching programme, US music summer camps – and even an album by Faithless - to name but a few!

Hot off the press at Europolitics today, is a report on Internal Market Commissioner Michel Barnier's agenda for IP initiatives. In speaking to the Euro Parliament's Legal Affairs Committee on Monday 22nd, Barnier identified initiatives on patents, trademarks, and internet piracy.

As far as copyright is concerned he outlined two legislative proposals that will impact authors - one on orphan works and the other on collective management of authors' rights.

Reflecting that "approximately 40% of library collections are "orphans".........Barnier indicated.....that he agreed with the principle of mutual recognition between national systems advocated by the JURI committee and mentioned a proposal by the end of 2010."

As far as collective management is concerned, the very dishy Barnier (no apologies for betraying personal taste here) is supportive of a directive that would "facilitate the obtaining of cross-border licences and encourage development of the 'lawful offering' in the EU at a competitive price" and it appears he may either propose a green paper followed by a directive in 2011, "or a directive as of this year". Handsome and supportive of the administrative convenience, pro-author and consumer-friendly business model of collective administration. Swoon.............this man has everything!

Tuesday’s ECJ judgment in the three Google France cases isn’t just important for trade mark law. It’s news for copyright too as it addresses the hosting defence of the E-Commerce Directive. The hosting defence limits liability for copyright as well as trade mark infringement. It has therefore been taken as a defence for a wide range of websites for copyright liability, particularly UGC sites, such as YouTube, Facebook etc.

The hosting defence

Article 14 of the E-Commerce Directive states that the provider of an ‘information society service’ that consists of the storage of information provided by a user of the service is not liable for illegal information, so long as the provider didn’t authorize, control or know about the information and removes it promptly when alerted to it. An ‘information society service’ is defined as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service.

Recital 42 says the service provider’s activity must be limited to a technical, automatic, passive process of operating a communication network over which third-party information is transmitted (or temporarily stored for the sole purpose of making the transmission more efficient).

Areas of confusion

During the Noughties, questions have been raised over who qualifies as an ‘information society service provider’ and what activities can be described as ‘storage of information’. Does Recital 42 really apply to hosts, or just conduits and caching?

Despite the fact that the hosting defence is so heavily relied upon, this is the first ECJ judgment and the defence has received relatively little consideration by the UK courts, though Continental courts have explored it. In the UK it has been successfully relied upon in libel cases: for comments posted on Usenet newgroups (Bunt v Tilley) and bulletin boards on websites (Karim v Newsquest). Google’s search engine was held not to be a host (Metropolitan International Schools v Designtechnica). There appears to be a public consensus that displaying third-party content on websites passes the hosting test – though many sites are not ‘normally provided for remuneration’.

Rather than analysing such simple phenomena, the ECJ finds itself jumping in at the deep end with more complex site-user interfaces: AdWords in the Google France cases and, in a year or two, eBay in L’Oréal v eBay.

The hosting defence in the Google France cases

In the Google cases, the question was: if Google’s use of AdWords does not constitute a trade mark infringement, does Google benefit from the hosting defence? It would appear that the purpose of the question was: if Google was not found liable for infringement itself, could it be liable for the infringement by a party that had paid for an AdWord? The ECJ held that Google’s use of trade marks is not an infringement. However, because advertisers that pay for AdWords are potentially liable, if Google were to have secondary liability for an advertiser’s infringement, would Google be shielded by the hosting defence?

The Court took the view that AdWords is an ‘information society service’. Moreover, AdWords fulfils the criterion of being a service limited to operating a communication network over which information is transmitted. Was AdWords ‘storage of information’ provided by the recipient of that service?

Last September the Advocate General said that AdWords nominally fulfilled the notion of hosting but should not benefit from the defence – it was not a ‘neutral information vehicle’ because of Google’s relationship with the advertisers. The ECJ, however, said that Google’s financial relationship with advertisers is not relevant.

In the view of the Court, Google could be said to be ‘storing data’ because it was holding it in its servers’ memory. However, to benefit from the hosting defence the defendant’s activity must be ‘ “of a mere technical, automatic and passive nature”, which implies that that service provider “has neither knowledge of nor control over the information which is transmitted or stored”.’ The ECJ described such a role as ‘neutral’ and not ‘an active role’. The Court has left it to the national court to determine if Google AdWords fits this description but relevant points include: ‘the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords’ – the terms of the contract between Google and advertisers would help determine this. Perhaps there is a reference here to Google's Keyword Tool, which advertisers can use to choose keywords? If so, the Keyword Tool could be said to play a role that is both ‘active’ and ‘neutral’ in the sense that it is automated!

Storage

The Court held that Google ‘stores’ third-party data by holding it in the memory on its servers. This is true – but doesn’t AdWords go beyond this?

The storage of third-party data for AdWords is part of a process (cf. the discussion of eBay in L’Oreal para 437). Yes, Google holds the advertisers’ copy unchanged but that’s not all it does. It displays that copy at a given time, in a certain order and for a particular purpose. If I put a bicycle wheel on a shelf without altering it, then I am storing it. If I put it on a bicycle and ride it, I may not have altered the wheel, but ‘storage’ would not be the first word that comes to mind to describe what I have done. The website may not be changing the copy but it may be performing other activities around it: processing it, employing it, deploying it.

Which is not to say that the ECJ’s decision to base immunity from liability on ‘neutrality’ isn’t fair.

Lessons

Has this interpretation of the Directive helped clear things up for other sites?

Context doesn’t matter: the fact that it is acceptable for a host’s activities and deployment of third-party data to stretch far beyond static storage will come as welcome news for many, such as eBay. Similarly, if AdWords passes the test of being an activity limited to operating a communication network, then that must let a multitude of UGC sites off the hook.

Money doesn’t matter: receiving individual payments from users doesn’t weaken the defence – it would have trashed eBay if it had.

‘Storage’: Google ticked this box by holding data on its servers. What about parties that don’t have servers? The question of how freely ‘storage’ can be interpreted remains unclear.

‘Information society service provider’: well at least we now know for sure that it can include a website, not just ISPs. However, AdWords really can justify the claim that it is a ‘service’ and is ‘normally provided for remuneration’ – what about blogs and message boards that are free?

‘Lack of control’: this has emerged as central but hazy. It may suggest that sites should be wary of software that guides users’ choices? UGC is often produced through an interaction between users’ input and sites’ creative tools (examples here and here).

Under Article 21 of the E-Commerce Directive, the European Commission is obliged to re-examine the Directive every two years, proposing changes if necessary to adapt it to legal, technical and economic developments. Unfortunately only one report was ever produced. Another was planned for last year but has not yet materialized. When I asked why, the Commission told me it was its ‘prerogative’ to decide whether to produce reports.

The AdWords judgment has answered a few of the questions, but it looks like we’ll have to carry on making up the rules as we go along.

Tuesday, 23 March 2010

Harmonizing European Copyright Law: The Challenges of Better Lawmaking, by the talented team of Mireille van Eechoud, P. Bernt Hugenholtz, Lucie Guibault, Stefan Van Gompel and Natali Helberger, was published towards the end of last year. The title is published by Wolters Kluwer within its Information Law Series and is based upon the results of two major studies which the European Commission commissioned in 2006 and 2007 -- not that the Commission has a great track record in taking the reports that emanate from the University of Amsterdam's Institute for Information Law ((IViR) warmly to its heart.

The book's web-blurb states as follows:

"This book will provide analysis of the current state of play of and suggest direction for future development of European copyright law and related rights. The acquis communautaire is reviewed in depth, starting with an analysis of the exact competence of the EC in relation to its declared policy ambitions from the past to the present.

Next, the body of European copyright law is described. This is done not in the traditional way, i.e. on a directive-by-directive basis, but following a scheme of the principal elements that national copyright and related rights law share (e.g. what is protected subject matter, who are beneficiaries, what is the nature and extent of the exclusive rights and limitations, term of protection). Of all principal issues, the degree and scope of harmonization is analysed, put into the perspective of Member States’ obligations under the relevant international treaties (e.g. Berne Convention, Rome Convention, TRIPS agreement, WIPO internet treaties).

In addition, a number of items on the European Commissions current legislative agenda are subjected to a critical review, in light of our findings on the successes and shortcomings of the harmonization process so far".

The principal headings into which copyright is divided relate to (i) what is protected, to whom does it belong and for how long? (ii) the various rights to stop people doing things and the borders of those rights, (iii) those conceptually new-fangled topics, "rights management information" and technical protection measures. Following this, the study focuses on specific areas in which copyright is brought to bear: (iv) extension of term for sound recordings, (v) the term of protection of co-written musical works ('musical', in this context, including works which consist of both music and lyrics), (vi) the increasingly popular topic of orphan works, (vii) an appraisal of harmonisation ("blessings and curses") and (viii) the 'last frontier' of territoriality. Each of these units has its own conclusions and assessment.

Probably the best assessment overall of Europe's attempts at harmonisation may be summarised as follows: difficult task, not always well done; improvements are needed in terms of (i) identifying the issues, (ii) formulating the correct policy for dealing with them and (iii) articulating that policy in the manner best able to facilitate its consistent implementation. Let's hope that the next edition of this work can, without loss of the sometimes painful directness which characterises it, offer news of improved performance in this, the most slippery and intransigent of Europe's IP rights to harmonise.

Monday, 22 March 2010

Via the eagle-eyed Gemma O'Farrell comes this news that the Irish High Court has asked the Court of Justice to give a preliminary ruling on legal issues raised in proceedings brought in an effort to have hotel operators pay a charge for playing copyright music in guest bedrooms. According to the Irish Times,

"The organisation which collects royalties for recording artists, Phonographic Performance Ireland Ltd (PPI), initiated an action last year against the State over its alleged refusal to amend a law which exempts hotels from having to pay copyright fees for music played in hotel bedrooms.

The PPI wants to charge €1 per bedroom per week. With around 50,000 hotel bedrooms nationwide, it estimates it is losing some €2.6 million annually. The PPI claims the Copyright and Related Rights Act 2000, which provides the disputed exemption, is contrary to EU law.

Section 97(1) of that Act provides there is no infringement of copyright where recorded music is heard “in part of the premises where sleeping accommodation is provided for the residents”.

Last October, the High Court directed that the issue of whether the State is in breach of its obligations under European law should be decided prior to any claim for damages.

Yesterday, in an interim ruling in the proceedings, Ms Justice Mary Finlay Geoghegan said she believed it was necessary to refer a number of questions in the case to the ECJ.

Among the issues the ECJ will have to decide is whether a hotel operator, as a result of providing TVs and radios in guestrooms, is a “user” of copyrighted music that can be played in a broadcast for the purposes of EU directive 2006/115/EC.

If the operator is such a user, the ECJ will then have to decide whether the same directive require the operator to pay a charge additional to royalties already being paid by TV and radio station operators.

The ECJ also has to decide whether hotel operators are exempt from such payments on grounds the playing of such music is for “private use” as provided for under the same directive.

A further issue is whether the directive permits the exemption of hotel operators from paying if the music is played by means other than TV or radio.

Ms Justice Finlay-Geoghegan said she would give the parties an opportunity to examine her interim judgment before making further orders and she adjourned the matter to next week".

This decision is not yet on this year's Irish High Court bit of BAILII. This is not the first time that copyright and hotel rooms have been considered by Europe's top court. In Case C-306/05Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, the court ruled that,

"While the mere provision of physical facilities does not as such amount to communication within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the information society, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of that directive.

2. The private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29".

Friday, 19 March 2010

Yesterday the Copyright Tribunal's decision and order in Meltwater Holding BV and other interested parties - NLA Ltd were posted on the Copyright Tribunal page of the Intellectual Property Office website (you can read it in full here). The Tribunal members were Lucy Connors, Philip Eve and Colin Birss QC.

"Public relations news monitor Meltwater has come out fighting - but not too hard - after ... it had been blocked from indexing News International’s Times Online.

It’s issued a 259-word statement in response that says… well, not much. The essential point: Meltwater is sticking to its guns and waiting for what it hopes will be an industry-standard ruling in its favour from the UK’s Copyright Tribunal, to which it took the Newspaper Licensing Agency’s (NLA) new online use license.

The sticking point: News International’s Times Online, here, is operating a similar principle to the NLA, of which it is a member - but it’s not operating the agency’s new licenses; it’s acting unilaterally…"...”

The blocking has been effected by updating Times Online's robots.txt file to block Meltwater, along with NewsNow, which was previously blocked.

The Meltwater statement reads as follows:

"Earlier this week, Times Online, published by News International, took the step of blocking Meltwater from indexing its website. We find this move both surprising and disappointing as Meltwater has sought a ruling by the UK Copyright Tribunal to provide clarity on current UK copyright law. Yet, despite the fact that the Tribunal is still months away from reaching a decision, News International has chosen not to wait for a judgment, but to pursue its own course of action unilaterally.

Meltwater acknowledges that there are different interpretations of the current UK copyright law today. However, we firmly believe that our services do not infringe upon anyone’s copyright because our services do not keep nor provide our clients with copyrighted content. To create clarity on this issue, Meltwater has brought the NLA’s (Newspaper Licensing Authority) proposed licensing scheme for online news to the UK copyright tribunal (Meltwater press release). Meltwater believes that the entire industry will benefit from a clear ruling on this complex issue, which is so important for all players in the online media industry. The Copyright Tribunal recently rejected the NLA’s claim that Meltwater was not entitled to have its case heard.

Times Online’s recent action is just the latest development in the ongoing copyright discussions in the UK market, a discussion that is far from over. Meltwater continues to serve the needs of its customers and we are reviewing all the options available to us – including the relevant technical and legal considerations – to ensure we continue serving our clients long into the future".

In brief, the Tribunal has upheld Meltwater's right to challenge Times Online's Web Database Licence/Web End User Licence set-up: Meltwater has the credentials to make its application and the Tribunal has jurisdiction to hear it. The Tribunal has also set a timetable for hearing the dispute. The main diary dates are June 2009 (case management), October 2009 (pre-trial hearing) and 7 February 2011, where a hearing of between 5 and 7 days' duration is expected.

Thursday, 18 March 2010

From Greek IP practitioner Nikos Prentoulis comes the news that last week, following the filing of a criminal complaint by the EPOE (Society for the Protection of Audiovisual Works - a collective rights management society), the Electronic Crime Unit of the Greek police took down the most famous Greek site for illegal music and movie downloads -- gamato.info. [Explanation by Nikos: "gamato" means very cool, but it stems from the greek word gamo, rendered in the English language by a four-letter expletive much favoured by TV chefs and footballers]. The police raided premises in four Greek cities, including Athens and Thessaloniki, and arrested six people, as moderators and/or "VIP" members of the site. Criminal procedure has been initiated against five more people, two of whom are said to be living abroad.

According to the news (here in English; here in Greek), Gamato essentially provided torrents for P2P file sharing and apparently had more than 850,000 to 900,000 member-users. There was also a good deal of protest against the takedown of the site, including creation of a relevant Facebook group.

A new podcast has arrived at the headquarters of the 1709 Blog from Copyright Clearance Center’s Beyond the Book site. It features Sree Sreenivasan (Dean of Student Affairs at the Columbia University Graduate School of Journalism; former technology reporter) discussing about new media and innovation in the realm of copyright. He focuses on the topics of Hulu [note for non-US readers -- Hulu is a website offering commercial-supported streaming video of TV shows and movies from NBC, Fox, ABC, and many other networks and studios; these videos are currently offered only to users in the United States and, to ensure that no international users outside the US have access to them, Hulu blocks many anonymous proxies and virtual private networks] and new media copyright (podcast here; transcript here).

Also from the Copyright Clearance Center comes news of this article in Ad Age which offers a thorough yet concise summary of the CCC's OnCopyright conference -- an event designed to explore how copyright applies in the digital age. Judy Shapiro, author of the article, highlights sessions with Google’s Senior Copyright Counsel Bill Patry, entrepreneurs, artists and media people who are all coping with working within a copyright compliant manner while being able to monetise their works (photo, left, by Duncan Davidson).

"Copyright's Private Domain" is the title of the Fifth Annual international Intellectual Property Lecture (funded by the Herchel Smith bequest), which will be held on Tuesday, April 27 5.30 pm for 6 pm. The speaker is Professor Graeme W. Austin (University of Arizona). What's this all about? Explains the publicity information:

"The public domain is valorised as the repository of raw material that makes all creativity possible, but it is not the only counterpoint to copyright's system of exclusive rights. With the current emphasis on the public domain in copyright commentary and political activism, we risk losing sight of the importance to creative processes of private imaginative activity, including private engagement with copyright-protected works. This lecture will examine ways that copyright and privacy law work together to create a "private domain," in which intellectual, imaginative and artistic experimentation and creativity can occur, away from public scrutiny and judgement. In the era of YouTube and MySpace and the like, with their relentless encouragement of public dissemination and display, it is useful to recall the importance of private contemplation and experimentation to the "learning" that copyright is meant to encourage.

Key copyright doctrines and policies map out copyright's private domain: copyright's protective attitude toward unpublished manuscripts, its exclusion of "private" performances from copyright owners' exclusive rights, defences for research and study, private copying provisions. On the privacy side, there are venerable links with copyright: copyright's solicitude toward privacy interests contributed to the development in some jurisdictions of a common law privacy right. Copyright's private domain is not a substitute for the public domain. Even so, recognition of the links between copyright and privacy, including of the ways that both foster creative and imaginative activity, might usefully contribute to debates about how best to fashion copyright law in a manner that serve the interests of both owners and users of copyright-protected works".

This lecture is by invitation only. Those wishing to receive an invitation should write to Carol Hosmer here.

A reminder for our readers: judgment will be given on Thursday 15 April in Case C-518/08Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet, a reference to the Court of Justice for a preliminary ruling on the legitimacy of the French provisions relating to the artist's resale right. The questions which the court is asked to address are:

"1. Can France, subsequent to [Directive 2001/84/EC] of 27 September 2001, retain a resale right allowed only to the heirs to the exclusion of legatees or successors in title?2. Do the transitional provisions of Article 8(2) and (3) of [Directive 2001/84/EC] of 27 September 2001 allow France to have a derogation?".

The Advocate General's Opinion, delivered on 17 December last year, can be found here (noted by the IPKat here).

The study was undertaken by an independent consultancy firm TERA, with the team led by an economics professor, Professor Patrice Geoffron of Paris-Dauphine University. The report weighs in at 68 pages and explains in detail how it derives the figures from which it calculates the loss of jobs.

While reluctant to grant more publicity to the Pirate Party, it is notable that their press release (no, there is no active link on this page - those who are interested enough can find the original) criticises the report's content for "containing dubious facts, inconsistencies and sloppy methodologies" while not appearing to notice that it is workers' representatives rather than "big business" that was the primary mover behind the report. Indeed PPUK's primary criticism appears to be the report's reliance on "lost sales" as the starting point for calculating piracy losses, although from a brief scan of the report, it appears that, for example, the authors recognise and build into their modelling the realisation that only a small proportion of "illegal" copies which are prevented would result in legitmate sales.

In these pre-election times and in the interests of balance, 1709 is inclined to say "other single issue extremist parties may be available in your constituency."

For the outcome of a recent Cambridge Union debate between (inter alia) this blogger and the founder of the Swedish Pirate Party, who did proclaim at length about the blessed Statute of Anne after whose year this blog is named see here.

Tuesday, 16 March 2010

Look out across the plains of the Information Society and you will see that they are now heavily populated by a new species. Homo digitalis has arrived, with his insatiable appetite for electronic stimulus. He is perfectly adapted for online existence: teeth that glint ironically as they mash up, a gaping data tract, a huge stomach (sometimes expanded by pirated material), a rich culture in his super-absorbant intestine and a super-fast metabolic click rate. Rightsholders desperately try to satisfy him using those so-called ‘new’ business models, Advertising and Subscription. These models require content, more and more of it. But each piece of content has a copyright owner or two. Permission must be granted. Is it possible to keep up? Is there anything the EU can do to speed up copyright licensing?

Territorial licensing

On 22 October 2009 the European Commission published a consultation paper ‘Creative Content in a European Digital Single Market: Challenges for the Future’. Responses were to be submitted by 5 January 2010 – they can be read here. The paper looks at several ways of making copyright licensing more efficient including amalgamating the digital reproduction and performance rights, aggregating different people’s rights (so you can clear music in one hit), a central collective management rights database, extended collective licensing for orphan works, transposing the Satellite and Cable Directive to the Internet, an Internet flat rate – and a single European copyright, probably replacing existing national copyrights.

The Euro copyright is advocated as a solution to the territoriality of copyright. The paper argues that homo digitalis’s copyright habitat has been impoverished by territorial licensing. Content that is available in some parts of Europe is absent elsewhere. Citizens, it says, should expect to be able to access the same content across borders without impediment. This regional variation is caused both by individual rightholders licensing works differently in different countries and by collective management practices: businesses that offer music services across Europe are hampered because they need to clear public performance rights several times over with collective management organizations in different countries.

Could a Euro copyright be territorially indivisible?

It is suggested that the Euro copyright could make territorial licensing a thing of the past. The paper states that it is because an EU rightsholder currently has 27 separate intellectual property rights that he can license a right in one country but not in another. An EU copyright title would restrain rightholders from this antisocial habit.

Could a Euro copyright be indivisible? This is not be an unprecedented concept – arguably the UK’s copyright is territorially indivisible (e.g. you wouldn’t be able to license rights in Scotland without licensing them in the rest of the UK). However, if a Euro copyright was made territorially indivisible, rightholders could resort to other cunning means to PARTITION (gasps!) and FRAGMENT (more gasps!) the Single Market – e.g. have separate licences in different languages or stipulate that the licence is only for use via a named (localized) service. Perhaps the ECJ would respond with a new body of law: ‘measures having equivalent effect to territorial restrictions’? Let’s suppose this happened. Do consumers across the EU all want identical fare? And how many licensees are able to afford to buy and successfully exploit rights across the entire EU? If rightsholders were limited to offering only pan-European licences, the number of companies that could exploit them would be extremely limited and the EU would have destroyed a competitive market in one fell swoop.

Perfecting harmonization

The paper says that the Euro copyright would also harmonize copyright exceptions that are currently discretionary. Further harmonization of copyright exceptions, it is argued, would create more certainty for consumers. Are consumers confused about the lack of harmonization of copyright exceptions? Is homo digitalis in Warsaw disorientated when he reflects on how his exceptions differ from those in Spain? Homo digitalis doesn’t care if copyright law is inconsistent – he just wants less of it.

Anyway, discarding 300 years of copyright law (and embarking on a 150-year transitional period before national copyrights expire) seems a drastic way of fine-tuning exceptions – though some believe that the piecemeal harmonization of copyright has been so flawed that there’s a case for starting from scratch. Mireille van Eechoud expressed this view at a combined BLACA/BCC meeting last week. Piecemeal harmonization, she said, has been overly influenced by fleeting political agendas and has resulted in an incremental ratcheting-up of copyright protection.

Enforcement

A Euro copyright has potential value for enforcement, particularly when copyright has been infringed on the internet. When copyright-infringing content is uploaded to the internet, there still appears to be a lack of consensus in Europe as to whether there is only an infringement where the material has been uploaded or also where it is viewed. UK academics are divided on this point. German courts have held that making available happens in both places and last year a Scottish sheriff’s court held that someone who sets up a website ‘can be regarded as potentially committing a delict in any country where the website can be seen’ (Mackie v. Askew).

If it is held that infringement does take place where content is viewed, then a judge in one member state could have to apply the copyright laws of all 27 European states – Rome II provides that the law where the infringement takes place governs the basis of liability, grounds for exemption from liability (i.e. exceptions) and the nature and assessment of damage. A Euro copyright would simplify this process – one law, one set of exceptions. Having said this, there are other less longwinded ways of sorting this out such as agreeing that the law most closely associated with the infringement should be applied (or perhaps something slightly more nuanced).

Maybe a little less theorizing and a bit more pragmatism is in order. A question came from the floor at the BLACA/BCC meeting: ‘What empirical evidence is there for benefits arising from harmonization of copyright?’ ‘The evidence is not impressive,’ the reply came. The ECJ’s stats came out yesterday. Why, for example, are the answers to pressing questions of telecommunications law raised in the FAPL case in 2008 not expected until 2011? If Europe is to facilitate commerce, first it should make sure that it is not actually hindering it by jamming on the breaks every so often and putting everything on hold.

The Digital Economy Bill has moved one step closer to becoming law, been approved by the House of Lords last night. Next step is the House of Commons, where the debate over some of the Bill's more controversial elements should begin in earnest.

The record industry is naturally behind the Bill, with the BPI's Geoff Taylor stating "it is vital for the future of the UK's creative sector that the digital economy bill becomes law before the dissolution of parliament … we are pleased that is has passed successfully through the Lords and will continue to work closely with all parties as it progresses".

The Guardian reports that there is some concern regarding the speed of the Bill's progress however, and fears that the so-called 'wash-up process' (which allows behind-the scenes political bargaining to rush through legislation before parliament dissolves) will mean that the Bill is not debated properly.

The Bill's progress will do nothing to resolve the arguments that are currently being waged over its contents however. In a more light-hearted attack on the Bill (though presumably equally as worrying if you are a true music fan) TalkTalk, a committed opponent of the proposed moves to restrict internet access for illegal sharers, has teamed up with musician Dan Bull to produce a 'tongue-in cheek' look at the Bill in the form of the video 'Home Taping is Killing Music'. In theory 'connecting' with people via a video is in itself a clever idea, but the jury is certainly out as to whether this particular effort will win TalkTalk any further supporters.

Friday, 12 March 2010

Readers of this weblog may recall the refusal of a Norway District Court last November to order ISP Telenor to block its customers' access to The Pirate Bay's file-share website (see earlier post on the 1709 Blog here). Well, here's the sequel, supplied by Telenor's legal representatives, the illustrious law firm of Wiersholm, Mellbye & Bech. Read on:

"Background

During the spring of 2009 the music and film industry submitted a preliminary injunction suit before the Norwegian courts, demanding the ISP and telecom provider Telenor would to shut down access to The Pirate Bay website for its customers. The Pirate Bay will be familiar to many readers, it being the Swedish website which allows users to upload, search for, and download torrent files. The BitTorrent-technology allows torrent files to be used for peer to peer file sharing, meaning that the file sharing takes place directly between the downloaders. The Pirate Bay does not store any of the content downloaded by the users of the website.

The Swedish court held that the persons behind The Pirate Bay were guilty of copyright infringement. The Pirate Bay provides a website to the file sharers with “well-developed search features, simple upload and storage” features, and “by arranging contacts” between individual “pirates” through the “site linked tracker”, the Swedish court held that the defendants facilitated and promoted copyright infringements.

The Norwegian injunction case was based on a different fact to that in the Swedish case. In short, the music and film industry claimed that Telenor contributed to illegal copyright infringements by allowing its customers to access The Pirate Bay.

Telenor stated that even though it does not support and has no sympathy whatsoever with copyright infringers in general, and with The Pirate Bay in particular, the mere act of providing the infrastructure of the Internet does not render it liable for copyright infringements such as illegal file sharing. Telenor explained that if it, as an ISP, were to be obliged to block access to The Pirate Bay, it would in principle be obliged to block any other website which is deemed to store infringed content. Telenor further held that the current case is a not another “The Pirate Bay case”, but a case which deals with the fundamental question of Internet censorship.

The findings of the court

In order to obtain a preliminary injunction under Norwegian law, the claimant must substantiate both the merits of the claim (in this case that an infringement takes place), and the grounds for injunction (postponing a regular ruling will cause the claimant substantial inconvenience or financial loss).

The District Court ruled in favour of Telenor and threw out the music and film industry’s application for an injunction in its decision of 6 November 2009. The music and film industry appealed the decision to the Borgarting Court of Appeal. On 10 February 2010 The Borgarting Court of Appeal upheld the decision by the District Court and dismissed the appeal.

The Borgarting Court of Appeal considered the merits of the claim in light of both regulations and case law from the EC and the Nordic countries in addition to the Norwegian legislation. It pointed out that Telenor neither provides internet access to The Pirate Bay, nor does it host The Pirate Bay website. Telenor is therefore a mere provider of technical infrastructure and does not illegally contribute to the illegal file sharing performed by users of The Pirate Bay. The court further stated that the substantive test is not whether or not there is a causal relationship between the service and the infringement, but whether or not Telenor commits an unlawful act by allowing its customers to access The Pirate Bay. The court found that neither article 8.3 of Directive 2001/29/EC nor any Norwegian legislation establish a basis for such a claim. Neither did the court find case law relating to liability for persons deliberately linking to infringed content to be applicable through the use of analogy in cases relating to ISP liability.

Two battles won – but is the war over?

The decision is not yet in force. There is therefore a possibility that the case will be appealed to the Norwegian Supreme Court. Further, since the decision from The Borgarting Court of Appeal is a decision in a case regarding a preliminary injunction, the claimants have the possibility of filing a regular law suit against Telenor.

In Wiersholms’ opinion there is every reason to disapprove of the parasitism of websites like The Pirate Bay, which obviously are designed to facilitate illegal downloading of copyright material. However, we do agree with the courts that there is currently no legal basis for claims such as the one brought on by the music and film industry. Further, Wiersholm disagrees with the music and film industry’s strategy of aggressively pursuing the technical service providers in order to battle illegal file sharing. Such a strategy raises a whole number of principled matters, in particular the then situation of the technical service providers filling the roles as police, judge, and jury. In addition there is the unavoidable fact that if access to The Pirate Bay is blocked, another alternative for illegal downloading will surely exist the morning after.

While this case has served its purpose of being the Nordic test case, the final word in the matter is yet to be said".

Thursday, 11 March 2010

In "Pink Floyd score victory for the concept album in court battle over ringtones", The Guardian reports on the victory of iconic British rock group Pink Floyd (The Wall, Dark Side of the Moon etc) over recording company EMI, which has been told by a court today that it can no longer license songs from any Pink Floyd concept albums as single downloads or mobile phone ringtones. Says the report:

"... the high court chancellor, Sir Andrew Morritt, said the label must adhere to a clause in its contract with the group intended to "preserve the artistic integrity of the albums" which prevented the unbundling of Pink Floyd's records.

Pink Floyd became one of the biggest rock bands in history with their elaborate and experimental concept albums and highly theatrical live tours. EMI had argued that its deal with the band, reaffirmed in 1999 before the download market took off, related to physical CDs and DVDs but not to online distribution.

Pink Floyd alleged, and EMI agreed, that the label had allowed online downloads from the albums and allowed parts of tracks to be used as ringtones despite the clause which "expressly prohibits" EMI from selling songs out of context.

The judge granted the band the declaration ... that the contract means EMI is not entitled to exploit recordings by online distribution or by any other means other than the complete original album without Pink Floyd's consent. ...

The verdict means the band's music may now have to be taken down from the iTunes online music store which requires that album tracks are for sale individually. ..

Yesterday's verdict is thought to be the first time a band have successfully taken their record label to court over the way it has distributed their music online[Offhand I can't recall any other cases in Europe where this has happened. I don't know about the US or elsewhere though. Can readers give chapter and verse of any comparable litigation?]. It could lead to other cases, music industry analysts believe.

Robert Howe QC, representing Pink Floyd, argued that it would have been "a very odd result" if members of Pink Floyd were able to control exactly how their music was sold as a physical product but there was "a free-for-all with no limitation on online distribution". Elizabeth Jones QC, appearing for EMI, disagreed and said the word record "plainly applies to the physical thing - there is nothing to suggest it applies to online distribution"".

I've taken a quick peep at the BAILII website and can't find this decision among the Chancery cases yet. It will be interesting to see if any moral rights issues are raised as well as the contract issues. It would be even more interesting to see how much of Ummagumma could be turned into ringtones ...

Wednesday, 10 March 2010

The record label’s trade body, The BPI, has published research by Ovum which rather spookily comes out just at the time when debate about the Digital Economy Bill is in full spate, and even more spookily suggests that if the six biggest internet service providers were to launch internet packages that had a licensed digital music service bundled in this year, the extra revenue they could generate on an annual basis by 2013 would be £103 million, assuming there was a "medium adoption scenario" which would be be equivalent to 41% of the total U.K. digital music market in 2009. The report also found that bundled music services could reduce ISP subscriber churn rates saying that "A big ISP with around 3.5 million customers would generate indirect value of more than £20 million per year if its bundled music service cuts churn by just 10%” and going to on say that “with the right service platform, user experience and merchandising strategy, ISPs have an opportunity to reach a green-field digital music market that mainstream download-to-own services such as iTunes do not reach today”. Commenting on the report, the BPI’s Geoff Taylor said

"It's increasingly clear that it isn't smart for an ISP to just be a 'dumb pipe'. This report shows that the revenue potential of digital music services alone makes sound economic sense for ISPs. UK music companies want to innovate and develop exciting new digital offerings. ISPs such as Virgin Media have recognised that legal digital music services offer a more exciting and profitable future than continued widespread piracy".

Now I am not sure if the likes of BT, Virgin and AOL like being called a ‘dumb pipe’ (a new one to me) but TalkTalk’s response (usually newsworthy when it comes to three strikes and ISPs’ policing the internet) was marvellously catty, with a spokesperson telling TorrentFreak

"TalkTalk thanks the BPI for its strategic business advice. Though some may question the value of such insight from an industry which has failed to acknowledge the impact of new technology on its own business models and is pressing the Government to criminalise its biggest customers".

Tuesday, 9 March 2010

I've just been looking at the beautifully-produced 182-page online book, Intellectual Property, A business tool for SMEs: A Guide for the Textile and Clothing Industry. This is one of a series of four titles produced under the IPeuropAware project, being designed to help SMEs in areas in which they are under particular pressure from infringers and competition-related problems, the other three being Leather, Footwear and Furniture. Turning for a moment to the Copyright Notice, I found this:

"COPYRIGHT NOTICE

This guide and its elements are protected by Intellectual Property legislation, in particular by Copyright law.

The guide and the information provided are available free of charge for public information only.

Reproduction and distribution in whatever form and by whatever medium (including Internet) is authorised, except for commercial purposes, provided that the source is acknowledged by mentioning:

• IPeuropAware project• the URL www.innnovaccess.eu where the Guides can be found online• the following legend: This guide has been produced within the project “IP Awareness and Enforcement: Modular Based Actions for SMEs” (IPeuropAware), which is financed by the CIP Programme, DG Enterprise and Industry of the European Commission and managed by the EACI.• the fact that the document and its information have been provided free of charge under the IPeuropAware project.

However, prior permission of the Copyright holders is needed for any adaptation or translation of the documents or information. Should you be interested, please contact ipeuropaware@ua.es".

Monday, 8 March 2010

The UK is currently putting in place two new copyright laws. One of them is causing quite a stir, crippling the nation with Twitter RSI. The other, The Copyright (Permitted Acts) (Amendment) Regulations 2010, has attracted less attention. One law offers the macho spectacle of file-sharers being throttled or terminated; the other is more merciful, bringing in new copyright exceptions.

The Copyright (Permitted Acts) (Amendment) Regulations 2010 are the end result of a lengthy consultative process. Back in 2006 the Gowers Review proposed seventeen changes to copyright law. One recommendation addressed piracy legislation but ten advocated new exceptions. Half of these are implemented by the Regulations, which are to be found in draft in the consultation document Taking Forward the Gowers Review of Intellectual Property: Second Stage Consultation on Copyright Exceptions, published in December with a closing date for responses at the end of this month.

The lack of public controversy surrounding the Regulations may, in part, be because they don’t affect very many of us in a big way – unless you happen to be a media studies student that is. Mostly they offer copyright exceptions when copying film and music for academic purposes. Students get a fair-dealing exception when using sound recordings, films and broadcasts in research. Schools and colleges can record clips of film and music, and transmit them and recorded broadcasts to distance learners. Libraries and museums can make copies of films, sound recordings and artistic works for preservation purposes. Here’s a summary.

The striking thing about the Regs is not so much what they cover as what they don’t. Of the exceptions that Gowers proposed two of the sexiest are missing: parody and format-shifting. Why didn’t they make it?

Parody, Caricature and Pastiche

Comic works that play on existing copyright works may infringe copyright unless they are only loosely based on the original or constitute fair dealing for criticism or news reporting. The consultation document says that there was a lack of concrete evidence, social or economic, in favour of creating a new exception though there was evidence against it. For example, music synchronization licensing accounts for up to 15% of music publishing income. Other problems with introducing an exception included drawing the line between parody and plagiarism (e.g. photographic parody), and infringement of moral rights.

Format-shifting

It is currently illegal to copy music and films from one format to another (e.g. CD to MP3). Though a format-shifting exception seems like a no-brainer to most people, it presents a number of difficulties. It might make the law even more complex (e.g. copies would need to be destroyed if originals were sold; not all content could be format-shifted due to DRM). There are questions over what types of works it should apply to; whether if should be for personal use only or for family and friends; should it apply to works published before the introduction of an exception? But though these are debatable points, the sticking point is money. Should the right owner receive some compensation for format-shifting, probably in the form of a levy on copying equipment?

The Government appears to believe that there would be no need for rightsholders to be compensated for format-shifting. They argue that this satisfies the ‘fair compensation’ requirement of the Infosoc Directive and is compatible with the the Berne three-step test, arguing that format-shifting does not conflict with normal exploitation. Rightsholders would disagree: selling content in different formats is the most normal thing in the world. For example, when CDs came in people went out and bought their vinyl collections all over again.

Nevertheless, the Government would like to wait for European copyright law to introduce a broader exception for non-commercial use (perhaps covering format-shifting, mash-ups and sharing with friends). Just legalizing format-shifting, they say, would be a half-baked measure when people go on to manipulate and share content. Furthermore, the Government does not dispute that a broader exception would require compensation, so they are hoping to avoid the negative response they would receive from creative industries by introducing a stand-alone gratis format-shifting exception.

However, a non-commercial exception for sharing legitimately purchased content with family and friends looks tricky: how do you know whether content that is being shared has originally been bought or pirated? Who are ‘friends’? Is sharing on an ad-supported site non-commercial? As for mash-ups, the EU consultation Copyright in the Knowledge Economy has led the Commission only in October of last year to say in a communication that it is too early to bring in an exception for non-commercial transformative use. It may be some time before the EU bring in a general non-commercial exception.

In the meantime, given that most people don’t even know that format-shifting is illegal and nobody is being sued for it, people should just carry on infringing...

A week or so ago, judgment was given in Softlanding Systems Inc v KDP Software Ltd and Unicom Systems Inc. [2010] EWHC 326 (TCC), an unusual instance of a copyright dispute being heard by the Technology and Construction Court for England and Wales (Judge David Wilcox) rather than one of the usual Chancery herd. When you read the technical stuff, you'll probably that the case ended up in the right court.

What happened here was that KDP had developed two new software products which significantly enhanced the value and utility of a product which Softlanding had already been licensing for some years. KDP and Softlanding accordingly agreed that Softlanding would market all three products. Their deal specified the royalties which KDP would receive and stated that none of the rights and duties of the agreement was assignable without KDP's written consent. This was with the proviso that, if KDP ceased to do business, it would hand over its source codes and transfer ownership of its products to Softlanding. The agreement also set out a standard end-user licence, which could be modified before grant with KDP's prior consent. Additionally, under the licence, Softlanding had various maintenance obligations which depended on it having access to KDP's source code.

The agreement, for an initial period of three years, was never extended although KDP continued to allow Softlanding to enter into licences with end users. Softlanding was then taken over by Unicom. Under a further agreement, Unicom provided maintenance services to end users and received all the revenue from doing so. Unicom subsequently failed to make a number of royalty payments to KDP, claiming that there had been an agreement that such payments would be calculated differently. In fact, Softlanding had failed to disclose the amount of royalties which were due to KDP. In some cases, that disagreement led to KDP refusing to provide source codes to enable Softlanding to undertake maintenance work.

In proceedings in which Softlanding sought and obtained an interim injunction ordering KDP to provide temporary source codes, the agreement between Unicom and Softlanding was not disclosed to the court and only emerged by accident. Softlanding submitted that (i) there was an implied continuation of the clause which entitled it to the source code and ownership of the software upon cessation of business by KDP and that (ii) KDP had failed to provide either the source code or title to the software. KDP submitted that Softlanding (i) had breached implied terms as to its obligation to account to it in relation to the transactions with end users, (ii) was in breach of the agreement by purporting to license end users otherwise than under the agreed licence and (iii) was also in breach by permitting intermediaries to distribute and license KDP's software products and to issue maintenance agreements. KDP further contended that Unicom had infringed KDP's copyright because Unicom's product licensing agreement was totally different from the terms on which KDP had originally agreed to license Softlanding. KDP therefore pressed that the interim injunction should be discharged, since there had been material non-disclosure and misleading of the court by Softlanding.

The judge found that Softlanding had not shown any entitlement to the product codes. The company had no right to these valuable business assets and its claim was dismissed in its entirety because of the effect of the agreement between it and Unicom. It may have been the case that Unicom was providing end user services, but KDP owed Unicom no contractual duty.

If this wasn't bad enough for Softlanding, things just carried on getting worse. Softlanding could not be said to have suffered any loss, even if KDP had been proved to be in breach -- which had not been shown. However, significant sums remained owing by Softlanding, whose continuing lack of candour and compliance with the obligation to account warranted the termination of the agreements by KDP. Softlanding had never sought the approval of KDP for any alterations in the agreed prescribed content of the licence, though it had been required to do. Such licences as Softlanding had issued, which were unapproved by KDP or contained amendments without KDP's knowledge, were invalid licences and the use of KDP's copyright software, having been wrongfully authorised by Softlanding, looked like an infringement too.

Now this is where the fun starts. The judge concluded that it would have been feasible for KDP to offer maintenance of its products to end users if it hadn't been for the fact that Unicom had been doing so. The assignment made by Softlanding to Unicom was clearly without permission and all authorisation and maintenance agreements entered into by Unicom were infringements. Applying the IP Enforcement Directive (2004/48), KDP was entitled to 100 per cent of the amounts paid by end users after that assignment. Also, since Softlanding had offered no explanation for its failure to disclose the agreement with Unicom but had instead raised a specious and time-wasting case, this was an exceptional case in which it was appropriate to discharge the injunction against KDP and instead award injunctive relief against Softlanding and Unicom to stop them infringing KDP's copyright.

New research from Consumer Focus, the UK’s consumer watchdog, says that nine out of ten consumers who are aware of online music services, have only heard of two established brands – iTunes and Amazon and Consumer Focus says that the survey of nearly 2,000 people shows that the music industry is failing to promote the many legal alternatives – four in ten people had never heard of a single online service. Unsurprisingly the music industry said it was a “fallacy” to imply that awareness of legal music services is low and Geoff Taylor, the chief executive of the BPI, the record industry trade body, said: “It’s just not credible to suggest that people who are downloading illegally haven’t heard of iTunes, Amazon or other legal music services” adding “our much larger, more recent and targeted online survey shows that awareness of legal music services among internet users is almost universal”. I have to say, it does somewhat depend on who Consumer Focus surveyed – my great aunt, who is reasonably computer savvy, knows what a download is (in theory) but would not be able to name a single online service as she only uses CDs. It is also fair to say that with their market dominance both Apple’s iTunes and Amazon would be expected to poll significantly and it would be interesting to see exactly what was asked and of whom. Without that information the statistic is as meaningless as the record industry’s own use of the statistic that “95% of all downloads are illegal” (IFPI), somehow trying to equate this to a 95% loss of actual sales of recorded music.

The survey has added spice to the ongoing debate about the relevance of a ‘three strikes’ law which would be used to disconnect persistent illegal download offenders as envisaged in the Digital Economy Bill, and of course the new High Court injunctive powers set out in Lord Tim Clement Jones’ recent House of Lords amendment to the Bill. I the red corner the BPI’s Geoff Taylor said “The measures in the Digital Economy Bill are precisely what is needed to encourage illegal downloaders to move across to those legal services” whilst in the blue corner Jill Johnstone, International Director, Consumer Focus, said: “The music industry is shooting itself in the foot by not promoting legal online music services. If file sharing is causing the damage the music industry claims, why aren’t they putting more effort in to promoting the legal alternatives?” adding “Before we go down the enforcement road it is only fair to ask the music industry to do more to make people aware of the legal options". The BPI's Harris Interactive research of 3,442 respondents in November 2009showed 96% had awareness of iTunes/Amazon/7 Digital/HMV (etc); that 87% had awareness of subscription services like Napster, eMusic (etc); that 87% had awareness of music direct from artists sites; that 86% had awareness of being able to obtain music via mobile handsets; and on streaming services, 55% had awareness of Spotify, 52% had awareness of last.fm and 31% had awareness of We7.

Thursday, 4 March 2010

Controversial Clause 17 of the Digital Economy Bill which was designed to allow ministers, rather than parliament, the right to introduce new copyright rules has been dropped following a last minute move by the Liberal Democrats to amend the proposed legislation in the House Of Lords. Liberal Democrat Lords Razzall and Clement-Jones proposed an amendment which could see UK Internet Service Providers forced to block web sites with a high proportion of copyright-infringing content with the key passage in the amendment saying:

"The High Court shall have power to grant an injunction against an [internet] service provider, requiring it to prevent access to online locations specified in the order of the Court."

A further statement in the amendment says that this would apply when a substantial proportion of the content accessible at or via each specified online location infringes copyright.

The amendment, if successful, is a double whammy for ISPs as the High Court’s new powers would be available to the content industries alongside the proposed new ‘Three Strikes’ provisions. It remains unclear whether the new powers could be used against sites (rather than ISPs) such as Oink! or The Pirate Bay which do not host any infringing content themselves but provide links to infringing content - although if widely drafted the amendment would potentially bring in a the concept of ‘authorising infringement’ into UK law. Tim Clement-Jones (pictured) explained the motive behind the amendment thus

“I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the internet but we are responding to genuine concerns".

The blog world was up in arms with widespread rumours that, if the Bill passed, content owners could easily misuse the new powers especially against video-sharing sites like YouTube, which do host infringing content uploaded by users - until they are made aware of its presence on their platform and take it down.

Open Rights Group director Jim Killock told reporters:

"This would open the door to a massive imbalance of power in favour of large copyright holding companies. Individuals and small businesses would be open to massive 'copyright attacks' that could shut them down, just by the threat of action. This is exactly how libel law works today: suppressing free speech by the unwarranted threat of legal action. The expense and the threat are enough to create a 'chilling effect'".

At the beginning of the week Lord Puttnam said that the Bill was being rushed through parliament without sufficient scrutiny, and that legislators were subject to an "extraordinary degree of lobbying" from copyright holders.

The Digital Economy bill is currently in the report stage at the House of Lords before its third reading in the Commons. Whether it will receive assent before the upcoming general election remains to be seen. Lord Puttnam said of the current Bill

"What will end up leaving this chamber... and going to the Commons is a bill that none of us is particularly proud of. It will be a spatchcock that does part of the work it was intended to do but not all of it."

Wednesday, 3 March 2010

The current issue of the International Journal of Law and Information Technology (IJLIT, published by Oxford University Press), contains two articles that address copyright issues. They are

* "In The Aftermath of the Promusicae Case: How to Strike the Balance?" by Fanny Coudert and Evi Werkers (both researchers at KU-Leuven). According to the abstract,

"Copyright societies are currently pushing for increased private enforcement of intellectual property rights on the Internet, in particular by trying to involve Internet Service Providers (ISPs) in their combat against copyright infringements, and by pushing for new legislative mechanisms. This raises serious legal problems and questions both in terms of the protection of users’ privacy, their right to a fair trial, and the liability of ISPs. This article discusses the difficult task of balancing copyright interests and fundamental rights as debated in the Promusicae case".

"The history of publishing legal decisions (law reporting) in the UK has been that of a privatised system since its inception, and that history has encompassed several hundred years. The privatised nature of this has meant that the product (the law report) has been, except in limited cases, viewed as the property of the publisher, rather than the property of the court or public. BAILII is an open access legal database that came about in part because of the copyrighted, privatised nature of this legal information.

In this paper, we will outline the problem of access to pre-2000 judgments in the UK and consider whether there are legal or other remedies which might enable BAILII to both develop a richer historic database and also to work in harmony, rather than in competition, with legal publishers. We argue that public access to case law is an essential requirement in a democratic common law system, and that BAILII should be seen as a potential step towards a National Law Library".

The United States Supreme Court has delivered its opinion in Reed Elsevier v Muchnick. This is an all-American case – not only does it follow the now-familiar formula of ‘digital rights grab—class action—failed settlement’ but it centres on US copyright registration requirements.

Back in the 1980s some publishers set about digitizing newspaper and magazine articles without permission. Journalists sued in a class action. The claimants had registered copyrights but some of the members of the class had not. The district court (after the comparable Tasini case had been decided) encouraged the parties to settle. A few years later the publishers agreed $18 million compensation and the district court approved the settlement. However, some journalists were not happy and appealed. The appeals court then said something that none of the parties wanted to hear: the district court did not have the jurisdiction to approve the settlement because of §411(a) of the Copyright Act. This states that (generally) copyright infringement proceedings cannot be instituted unless the copyright has been registered. So the parties turned to the Supreme Court, submitting a petition for a writ of certiorari, to clarify the question of whether §411(a) restricts a court’s jurisdiction.

The Supreme Court has now reversed the appeals court’s decision, saying that §411(a) does not restrict the jurisdiction of the district court to approve the settlement – ‘jurisdictional’ being a very narrowly construed concept that needs to be clear in the Act. The Court was keen to put an end to ‘drive-by jurisdictional rulings’.

However, the Supreme Court specifically said that it was not addressing the question of whether district courts may or should dismiss copyright claims involving unregistered works. It would appear that the Supreme Court has answered a narrow question, leaving aside the bigger one. If the appeals court had vacated the district court’s judgment on the grounds that §411(a) required claims involving unregistered works to be dismissed (irrespective of jurisdiction), perhaps the Supreme Court would have affirmed the appeals court decision. There would seem, therefore, no evidence that this opinion will lead to a spate of US class-action claims with unregistered copyright owners piggy-backing on registered copyright owners.

Tuesday, 2 March 2010

Copyright in Jewish Law is the title of a book recently published by Feldheim Publishers. Its author, Rabbi Nachum Menashe Weisfish, is a Jerusalem-based scholar of Jewish law who has trawled a wide variety of source materials in order to produce what the publisher describes as

"the first sefer [this term is used for a book with Jewish religious content rather than, say, a secular legal textbook] to clarify what is and what is not permissible to copy. A definitive work, with practical answers to questions regarding photocopying machines, compact discs, computers, the internet, and more. Widely acclaimed by Gedolei Yisrael [those whose scholarship is acknowledged by others], and with extensive Hebrew footnotes and sources, this sefer is a great aid to Rabbanim [rabbis], talmidei yeshivah [students of institutions where Jewish law is learnt], and laymen alike".

From this introduction it can be seen that the text of Rabbi Weisfish's work is addressed to students of Jewish law who seek to understand how the issues raised by copyright -- a body of rules that is not obviously addressed in the Bible itself or in ancient oral tradition -- are tackled and resolved by mainly modern Jewish thinkers. The text is in a clear and accessible English, though this work is a new rendition of the author's earlier work, in Hebrew, Mishnas Zechoyos HaYotzer. The footnoted source materials, a little disconcertingly for the English reader but invaluably for the Jewish scholar, remain in the original Hebrew.

The reader who is well-versed in copyright law will find this tome something of a culture shock since discussion of the usual international treaties and conventions, national statutes and judicial lawmaking is notably absent. Instead, he will be introduced to rulings, majority and minority opinions, analogies and syllogisms which are a far cry from the laws he deals with on a daily basis. However, as one might expect in any religious system in which divine law is generally limited neither in time nor in space, the rules that govern copyright under Jewish law do not depend on the mere chance that one is living in 21st century New York rather than, say, the 19th century Ungvar in which Rabbi Shlomo Ganzfried composed his abbreviated code the Kitzur Shulchan Aruch, one of the many legal materials cited in this book. So, if you want a fresh look at copyright, this book offers you a fascinating intellectual holiday from your habitual copyright thoughts.

Bibliographic details. ISBN: 978-159826-442-5. Hardback, xxvii + 259 pages, 2010. Book's web page here. And before you ask, the text reads from left to right ...

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Postgraduate Diploma in Media and Entertainment Law, by Distance Learning over 12 months: 21 September 2015 to 31 August 2016: under the auspices of the London Metropolitan University. 8 core modules plus options on Defamation and the Politics of Media Regulation. For full details of this course and also for registration, just click http://www.ibclegal.com/FKW12364SON.

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17 to 21 August 2015: IBC Legal's 15th Annual Intellectual Property Law Summer School, held as usual in the lovely and congenial surroundings of Downing College, Cambridge. As befits this popular event, there is an all-star cast. In addition, 1709 Blog team blogger Jeremy will be running a trade mark-based dispute resolution exercise on the Thursday afternoon. There is a generous 20% registration fee discount for 1709 Blog readers who click here to register, quoting the VIP Code of FKW825641709.

17 and 18 September 2015: "Enrolling Internet Intermediaries in the Law Enforcement Process: Challenges and Opportunities", the first iClic Conference, in sunny Southampton, starring our very own Eleonora plus a strong supporting cast. Click here for details.

24 September 2015: "Protecting the Media 2015", to be held somewhere in Central London. This popular IBC Legal event is now in its 21st year -- which still makes it a good deal younger than some of the seasoned campaigners who appear on the all-star programme. Speakers include Michael Skrein, Gavin Millar QC, Heather Rogers QC and The Sun's Justin Walford. Click here for details of the agenda and registration. To enjoy the privilege of a handsome 15% 170 Blog readers' discount, remember to quote the special code FKW82777SON.